The revised Administrative Procedure Act, enacted in 1995 and operative July 1, 1997 (Stats. 1995, Chap. 938 (SB 523)) contains an Administrative Adjudication Bill of Rights, in Gov. C. §11425.10 et seq. (set forth in full in Appendix B).
See page 11-35 for information about objecting to a hearing officer granting the D.M.V. a continuance without good cause.
Defense attorneys have repeatedly complained to each other and the D.M.V. about problems related to excessive delay and poor preparation by D.M.V. hearing officers. Delays of several months prior to a hearing are typical in some areas, and these delays are typically followed by months of waiting for a decision following the hearing. The form set forth below attacks these delays as violative of statutory law and the right to Due Process.
Keep in mind that the form is limited to the situation where the hearing was requested within 10 days of the arrest. In those cases the driver (respondent) is clearly entitled to a stay pending the outcome of the hearing. Where the hearing was requested more than 10 days from the arrest, but less than 30 days from that event, you'll have a tougher time of it, since the Vehicle Code doesn't guarantee any hearing at all. But see page 11-23 for argument against treating such a request differently than one made within 10 days.
PRACTICE TIP: If the D.M.V. denies this motion to set aside, or more likely just refuses to give you a hearing on it, the only appropriate relief is by way of a C.C.P. §1085 writ. It allows Superior Court review of a non-final order of an administrative agency, and a stay in the proceedings while the writ is decided.Be sure to allege, as part of your §1085 writ petition, that you have fully exhausted administrative remedies. This may be as simple as saying that you filed a written objection to the delay with the D.M.V., they denied it or refused to hear it, and there is no other procedure available to further contest the matter within the administrative proceeding. See, Shively v. Stewart (1966) 65 C2d 475, 55 CR 217.
See page 11-45 for more information on the C.C.P. §1085 writ.
PRACTICE NOTE: This motion is to be heard in accordance with the procedure that the D.M.V. has set forth for hearing motions in Cal. C. of Regs., Title 13, §§ 115.08 (see page 11-65).The following caption is for use when filing this form with the D.M.V. For other situations paste the text into your pleadings where appropriate.
[CLARENCE DARROW, ESQ. (SBN#00003)
1561 Main St.
Anytown, CA 94538
707 459 3998]
Attorney for [Respondent],
[Joseph G. Nizeguy]
DEPARTMENT OF MOTOR VEHICLES
STATE OF CALIFORNIA
THE MATTER OF THE ) Driver's License No. [N0084786]
HEARING CONCERNING )
THE DRIVING ) [MOTION FOR SET ASIDE;
PRIVILEGE OF: ) POINTS AND AUTHORITIES
) IN SUPPORT]
[JOSEPH G. NIZEGUY] )
)
NOTICE IS HEREBY GIVEN THAT: [JOSEPH G. NIZEGUY] (hereinafter referred to as ["Respondent"]), through his attorney of record, [CLARENCE DARROW, ESQ.], moves this agency, in accordance with the provisions of Cal. C. of Regs., Title 13, §§ 115.08, for a set aside of the suspension or revocation order herein on the grounds that the hearing date in the above-entitled matter was scheduled beyond the statutory time limit by the Department of Motor Vehicles (hereinafter referred to as "D.M.V."). This motion is made on the grounds set forth herein:
PROCEDURAL FACTS
The record reflects an allegation that [Respondent] was arrested on [September 10, 1998], for a violation of [Veh. C. §23152]1, and served on that date with an order of suspension pursuant to [§13353.2], with an effective date 30 days later ([October 10, 1998]).
[Begin Footnote]
__________________________
1. All further references to code sections are to the Vehicle
Code unless otherwise stated.
[End Footnote]
[Six] days after service of the order, on [September 16, 1998], respondent requested a hearing under §14100. In response, the department set a hearing date for [64 days after the request, on December 10, 1998]. The department also imposed a stay of the suspension because the request was made within the statutory 10-day time limit (§13558, subdivision (b)), and the department failed to conduct the hearing before the suspension effective date (§13558, subdivision (e)).
LEGAL ARGUMENT
I.
THE NON-DISCRETIONARY HEARING AND DECISION TIME LIMIT OF VEHICLE
CODE §13558 IS ENFORCEABLE AS MANDATORY, NOT MERELY DIRECTORY,
AND D.M.V.'S FAILURE TO COMPLY WITH THAT TIME LIMIT DEPRIVED IT
OF JURISDICTION TO SUSPEND DRIVING PRIVILEGES.
1. Veh. C. §13558, Subdivisions (d) and (e), Create an Obligatory, Non-Discretionary Duty to Hold a Hearing and Reach a Decision Within 30 Days of Arrest, All of Which D.M.V. Has Failed to Do in This Case.
Veh. C. §15 states that "Shall" is mandatory and "may" is permissive. The California Supreme Court has clearly and unequivocally stated numerous times, most recently in California Correctional Peace Officers Assn. v. State Personnel Board (1995) 10 C4th 1133, 43 CR2d 693, that the word "shall" in a statute, as opposed to "may", creates a obligatory, non-discretionary duty to act as the statute directs. There is no discretion to do otherwise.
[Respondent] was served with a notice of an order of suspension pursuant to §13353.2 at the time of the alleged arrest herein. [Respondent] requested a hearing on the order within 10 days of that event. This timely request, i.e., one made within 10 days of service of the notice of suspension, invoked the obligatory, non-discretionary hearing and decision time limit of §13558. That statute reads, in relevant part:
"(d) The department shall hold the administrative hearing before the effective date of the order of suspension or revocation if the request for the hearing is postmarked or received by the department on or before 10 days after the person's receipt of the service of the notice of the order of suspension or revocation pursuant to Section 13353.2, 23137, 23157, or 23158.5.
"(e). . . If the department does not conduct an administrative hearing and make a determination after an administrative hearing within the time limit in subdivision (d), the department shall stay the effective date of the order of suspension or revocation pending the determination . . . "
This statutory language, wherein subdivision (e) invokes the obligatory, non-discretionary time limit of subdivision (d), means that when [Respondent] timely demanded a hearing, that demand created a mandatory, non-discretionary duty on the part of D.M.V. to hold a "hearing before the effective date of the order of suspension or revocation" and "make a determination after an administrative hearing within [that] time limit ". The D.M.V. was statutorily obligated to hold a hearing, and make a determination after the hearing, all before the effective date of the suspension order. It had no discretion to do otherwise.
And what was the effective date of the suspension order in this case? §13353.3, subdivision (a), determines that. It states:
"(a) An order of suspension of a person's privilege to operate a motor vehicle pursuant to Section 13353.2, shall become effective 30 days after the person is served with the notice pursuant to Section 23137, or 23158.5, or subdivision (b) of Section 13353.2."
Thus, the suspension effective date is 30 days after service of the notice of it. In this case the notice was served at the time of [Respondent's] alleged arrest, on [September 10, 1998]. That made [October 10, 1998], the suspension effective date. Nevertheless, as has become the routine in these matters2, the D.M.V. did not schedule a hearing until [several months] after the effective date; in this case it scheduled the hearing for [December 10, 1998, which is 64] days after the effective date.
[Begin Footnote]
__________________________
PRACTICE NOTE: This footnote calls for you to add the DS-367's and hearing date notifications you have from other D.M.V. Stop 'n Snatch matters showing a pattern of late hearing dates.
[2. Attached hereto as Exhibit A is a series of documents,
all admissible as evidence under the authority of the official
duty presumption (Evid. C. §664) and the official records
exception to the hearsay rule (Evid. C. §1280), demonstrating a
pattern of procedure on the part of the D.M.V. whereby hearings
in these matters are routinely scheduled long after the effective
date of the suspension, in violation of §13558.]
[End Footnote]
Clearly, the D.M.V. has failed to meet its statutory obligation to hold a hearing and reach a decision prior to the effective date of the suspension order.
PRACTICE NOTE: As the following text makes clear, an agency's failure to act within a time limit, when it has an obligatory duty to act within that time limit, is not necessarily a jurisdictional defect that prohibits the agency from ever acting. In other words, the inquiry does not stop at determining the meaning of "shall" versus "may".Unfortunately, that distinction was not made in Austin v. D.M.V. (1988) 203 CA3d 305, 249 CR 618. Austin looked at the enforceability of Veh. C. §16075(e), which uses the word "shall" in setting a 15-day time limit for a decision following a hearing on lack of insurance. The opinion concluded that since "shall" is mandatory, the failure to render a decision within the time limit meant that no decision could ever be entered and the suspension could not be imposed.
Though Austin is comforting to licensees seeking authorities in their favor, its flawed analysis makes it difficult to rely on. For that reason, it's not mentioned in this form.
On the other hand, it does have some useful language. It held that an oral pronouncement at the conclusion of the hearing was not a final decision. It also held that a decision is rendered not on the date the paperwork is completed, but rather on the date that the licensee is informed of it.
2. A Mandatory Duty is Obligatory and Non-Discretionary, But is Enforceable as Either "Mandatory" and Jurisdictional or "Merely Directory".
The previous discussion made it clear that the D.M.V. had an obligatory, non-discretionary duty to hold a hearing and reach a decision on the suspension order in this matter on or before [October 10, 1998]. But the question remains: How must that duty be enforced? Is the duty one which is considered merely directory, subject only to enforcement by a writ of mandamus compelling an immediate hearing (see part III, below), or is it considered mandatory and jurisdictional, and additionally enforceable by a set-aside of the suspension? As we shall see, the mandatory duty in this case is enforceable as mandatory, not merely directory, and [Respondent] may enforce it by a writ compelling a set aside of the suspension.
The question of what remedy is appropriate when a state agency declines to hear and decide an administrative matter within a statutory time limit has been thoroughly deliberated and decided by our Supreme Court in the above-mentioned California Correctional Peace Officers Assn. v. State Personnel Board (1995) 10 C4th 1133, 43 CR2d 693, hereinafter CCPOA (see also, 2 Witkin, California Procedure, 4th ed. (San Francisco, CA: Bancroft-Whitney, 1997) §4 - Jurisdiction).
In CCPOA, 50 state employees demanded hearings on state agencies' actions to dismiss them from employment. The hearings were held, but the state delayed making decisions beyond the statutory time limits of Gov. C. §18671.1. The employees then petitioned for relief under C.C.P. §1085, demanding reinstatement to their jobs on the basis that the failure to reach the decisions within the statutory time limit deprived the state of jurisdiction.
The court began its analysis by clarifying the terminology used whenever such issues are discussed. Readers tend to confuse the idea of a "mandatory", as opposed to a "discretionary", duty to act, with the "mandatory", as opposed to "directory only", language used to describe the remedies available for failure to act when the duty is a mandatory one. CCPOA had this to say on the subject:
"The word `mandatory' may be used in a statute to refer to a duty that a governmental entity is required to perform as opposed to a power that it may, but need not exercise. As a general rule, however, a ``directory' or `mandatory' designation does not refer to whether a particular statutory requirement is `permissive' or `obligatory,' but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.' (Morris v. County of Marin, supra, 18 Cal.3d 901, 908.) If the action is invalidated, the requirement will be termed "mandatory." If not, it is "directory" only."
Immediately following that quoted text, CCPOA went on to describe how the courts must decide when a statutory time limit is enforceable as mandatory and jurisdictional, versus merely directory, saying:
"Time limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent. (Edwards v. Steele, supra, 25 Cal.3d 406, 410.) `In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory unless a consequence or penalty is provided for failure to do the act within the time commanded.'' (Ibid.) As Morris v. County of Marin, supra, 18 Cal.3d 901, 908, held, the consequence or penalty must have the effect of invalidating the government action in question if the limit is to be characterized as `mandatory.'"
Thus, CCPOA tells us that "[t]ime limits are usually deemed to be directory". But qualifies that general statement with "unless the Legislature clearly expresses a contrary intent". Therefore, we must look to see if the legislative intent of the Stop 'n Snatch3 laws compel a finding that the time limits are mandatory and jurisdictional.
[Begin Footnote]
__________________________
3. In footnote 3 of Lake v. Reed (1997) 16 C4th 448, 65
CR2d 860, the court remarked on this term, saying,
"3. Because, under the administrative per se statutes, the arresting officer actually takes physical possession of the arrestee's driver's license, practitioners colloquially refer to this procedure as `Stop and Snatch.' (See 2 Kuwatch, Cal. Drunk Driving Law (Sept. 1996), p. 11-2; Note, Put Down That Drink!: The Double Jeopardy Defense is Not Going to Save You (1996) 81 Iowa L.Rev. 775, 780, fn. 26.)"[End Footnote]
CCPOA states two tests that have been used in the past to determine if there was a legislative intent to make the time limits jurisdictional. The first is, "whether those consequences [finding the duty jurisdictional] would defeat or promote the purpose of the enactment". The second is whether a "consequence or penalty is provided for failure to do the act within the time commanded"; furthermore, "[such] consequence or penalty must have the effect of invalidating the government action in question".
The second test, the penalty test, can be quickly eliminated here. There is indeed a penalty for the D.M.V.'s failure to act within the time limit - it must stay the suspension pending the hearing and decision (§13558(e)) - but this penalty does not meet the requirement, stated in Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 CR 251, 255, and reaffirmed in the quote above from CCPOA, that it have "the effect of invalidating the government action in question". The penalty fails this test and the duty cannot be found to be jurisdictional on this ground.
But that's not the end of it. The other test is met by this statutory scheme.
3. The §13558 Time Limits are Enforceable as Mandatory, not Directory, Because The Essence of the Statutory Scheme is the "Immediate", "Prompt" and "Swift" Suspension of Driving Privileges, A Purpose Which Would Be Promoted Thereby.
A.Statutory Scheme Shows Immediate Suspension is its Essence.
Unlike the penalty test, the "defeat or promote the purpose of the enactment" test, is highly relevant. The whole statutory scheme of the Stop 'n Snatch laws is "immediate" and "swift" action to suspend driving privileges of those who drive with an illegal blood alcohol level. It includes a "prompt" hearing right in order to promote that goal. In short, speediness and promptness are the essential purposes of the entire legislative scheme, and that purpose is furthered by making the hearing and decision time limits enforceable as mandatory. The timeliness objective of the statutory scheme is compellingly advanced only by requiring the D.M.V. to hold hearings promptly, as §13558 directs.
In Coombs v. Pierce (1991) 1 Cal.App.4th 568, 2 Cal.Rptr.2d 249, the Court of Appeal described the Stop 'n Snatch statutory scheme as follows:
"A law went into effect on July 1, 1990, authorizing the Department of Motor Vehicles (DMV) to revoke a person's privilege to drive a motor vehicle for either six months or one year for driving with a concentration of alcohol in his or her blood equal to or in excess of .10 percent. [footnote 1] (Stats. 1989, ch. 1460, §1 et seq.) After arresting an individual for driving with an excessive concentration of alcohol in his or her blood, a peace officer confiscates the driver's license immediately; simultaneously, the peace officer issues a 45-day temporary permit. (Veh. Code, 2 §13353.2, subds. (a) and (b); §23158.5, subds. (a) and (b).)"
Subsequent to the decision in Coombs, and as further evidence of the speed with which the legislature desires these actions to be carried out, §13353.3(a) was amended to reduce the 45-day wait for the suspension's effective date to just 30 days (Stats. 1992, Chap. 1281 (AB 3580)). (The prohibited blood alcohol level was also reduced to 0.08% (Stats. 1990, Chap. 431 (SB 1150)).
In Gikas v. Zolin (1993) 6 C4th 841, 847, 25 CR2d 500, 504, the California Supreme Court again stated the legislative purpose of the statutory scheme at issue herein, saying:
"The express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions. (Stats. 1989, ch. 1460, §1, pp. 6501-6502; Agresti v. Department of Motor Vehicles (1992) 5 Cal.App.4th 599, 603, 7 Cal.Rptr.2d 353.) [Bold added.]"
What Gikas was referring to was the language of §1 of the bill which enacted this statutory scheme (Stats. 1989, Chap. 1460 (SB 1623)). It reads:
"SECTION 1. The Legislature finds and declares that the purpose of this act is to do all of the following:
"(a) To provide safety for all persons using the highways of this state by quickly suspending the driving privilege of those persons who have shown themselves to be safety hazards by driving with an excessive concentration of alcohol in their bodies.
"(b) To guard against the potential for any erroneous deprivation of the driving privilege by providing an opportunity for administrative review prior to the effective date of the suspension and an opportunity for a full hearing as quickly as possible after the suspension becomes effective.
"(c) To place no restriction on the existing ability of a prosecutor to pursue criminal actions pursuant to Section 23152 or 23153 of the Vehicle Code.4"
[Begin Footnote]
__________________________
4. This language is directed at precluding collateral estoppel
effects of the administrative proceedings on criminal
prosecutions. See Exhibit B, attached hereto.
[End Footnote]
B. Legislative History Reinforces Idea of Timeliness as the Central Purpose.
A look at the legislative history of the Stop 'n Snatch statutory scheme makes it overwhelmingly clear that these statutes were enacted for the primary purpose of promptly taking driving privileges from persons arrested for drunk driving, without the delays inherent in the usual criminal justice process.
Attached hereto as a series of exhibits (C through H) are relevant excerpts from the legislative history of Stats. 1989, Chap. 1460 (SB 1623).5
[Begin Footnote]
__________________________
5. These documents were obtained from the Legislative Intent
Service (800 666 1917), a legislative research service. The court
is requested to take judicial notice of these documents under the
authority of Evid. C. §452(c) (official acts of the
legislature).
Judicial notice is the proper mechanism to bring to the court's attention materials documenting the legislative history of an enactment (Evid. C. §452). The court's authority to exercise its discretion to judicially notice such materials under Evid. C. §452 is extremely broad (Evid. C. §454). When the procedure of Evid. C. §452 is utilized (advance notice sufficient to inform the opposing party) judicial notice is mandatory.
For authority specifically related to the type of documents presented here, see Post v. Prati (1979) 90 CA3d 626, 153 CR 511; Southland Mechanical Constructors v. Nixen (1981) 119 CA3d 417, 173 CR 917; People v. Rodriguez (1984) 160 CA3d 207, 206 CR 563; Hutnick v. U.S. Fidelity and Guaranty Company (1988) 47 C3d 456, 465 fn7, 253 CR 236; Maben v. Superior Court (1967) 255 CA2d 708, 63 CR 439.
Particularly important in this case is the authority of the
court to take judicial notice of the statements of M.A.D.D., a
proponent of the legislation (Woodman v. Superior Court (1987)
196 CA3d 407, 414, 241 CR 818; People v. Weatherill (1989)
215 CA3d 1569, 1576, 264 CR 298).
[End Footnote]
PRACTICE NOTE: These legislative history documents are available from Fast Eddie Publishing Company.
Exhibit C was prepared for a legislative committee hearing on May 2, 1989, and entitled "SENATE COMMITTEE ON JUDICIARY" and "DRIVING UNDER THE INFLUENCE: ADMINISTRATIVE LICENSE REVOCATION". At the bottom of the second page of the document, under the heading "COMMENT" it succinctly summarizes the purpose of the legislation as follows:
"`Administrative per se' is the prompt administrative suspension or revocation of the driving privilege for alcohol related offenses independent of court action. Mothers Against Drunk Driving, the sponsor of this bill, suggests that this bill is necessary in order to establish `swift, sure, and effective' penalties for DUI offenses.MADD claims that suspension or revocation of drivers' licenses can be an effective deterrent to DUI offenders. `Studies in California and Washington have shown license suspension to be more effective than assignment of offenders to alcohol education and/or treatment programs. If sanctions are imposed swiftly and consistently, they can play an important role in reducing DUI offenses.'"
Exhibit D is a letter dated April 14, 1989, from MADD's lobbyist, Shirley Graves, to Senator Lockyer, the author of the bill. She tells him in this letter that "the swift consequences serve to add to the deterrent effect."
Exhibit E is a document dated October 15, 1987, entitled "PROPOSAL - ADMINISTRATIVE PER SE", labeled page SP-6 through SP-17. Its numerous references to the purpose of this legislation are too long to quote here. But a reading of the document leaves no doubt in any reasonable mind that the overwhelming purpose of the proposal is to swiftly suspend driving privileges soon after an arrest.
Exhibit F was prepared for a July 18, 1989, meeting of the Assembly Committee on Public Safety. The third page of the document states that the purpose of the bill is swift suspension of driver's licenses of persons arrested for drunk driving.
Exhibit G, taken from the legislative record of chapter 1640 (SB 1623), is a brochure published by the U.S. Department of Transportation, National Highway Traffic Safety Administration, entitled "Questions Most Frequently Asked About Administrative License Revocation" (DOT HS 807 368). On the first inside page, under a heading entitled "What are the three most compelling questions asked about administrative license revocation?", it says:
"(b)Is the constitutional right of due process violated when a driver's license is suspended prior to an administrative hearing?"No. The U.S. Supreme Court, in Mackey v. Montrym 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), recognized that suspension/revocation of a driving license prior to an administrative hearing is not a violation of due process so long as provisions are made for a swift post suspension hearing. The Supreme Court stated that the summary and automatic character of the suspension was critical for the attainment of prompt removal of drunk divers from the highways and, more importantly, for the safety of the public."
The remainder of the brochure contains numerous references to promptness as a primary goal of these statutory schemes.
Finally, Exhibit H, again taken from the legislative record, contains perhaps the best quote of all, attributed to a David French, a lobbyist for MADD. He's quoted in the San Jose Mercury News, June 28, 1990, saying,
"When your dog piddles on the rug in front of you, the current system allows the owner to wait six months and then hit the dog with a rolled up newspaper."
The legislative record for this statutory scheme makes it abundantly clear that prompt suspension, without delay, is its primary goal.
C. The Legislature's Remedial Provision for a Stay of the Suspension, Pending an Untimely Hearing, Was Not Intended to Negate the Mandatory Duty to Hold a Hearing Within the Stated Time Limit.
In apparent recognition of its failure to respect [Respondent's] absolute right to a hearing and determination within 30 days, the department voluntarily instituted a stay of the suspension. It did so pursuant to the statutory remedy set forth in §13558, subdivision (e), which reads, in relevant part:
"(e) . . . If the department does not conduct an administrative hearing and make a determination after an administrative hearing within the time limit in subdivision (d), the department shall stay the effective date of the order of suspension or revocation pending the determination . . ."
PRACTICE NOTE: The following text requires that you include a declaration from the driver about the hardships he or she suffers without a hard-copy permanent driver's license.
This really isn't much of a remedy at all. No stay can relieve the tremendous burden now resting upon [Respondent's] shoulders. [As Respondent's declaration filed herewith makes clear, the lack of a hard-copy driver's license makes it impossible for Respondent to obtain fruitful employment, rent a car away from home, or cash a check or otherwise identify [himself] [herself] to persons unwilling to accept a California Identity Card. Whenever Respondent is required to show the temporary driver's license, Respondent is viewed with suspicion and distrust, and reviled as a drunk driver, without ever having been convicted of that offense or being administratively adjudicated so.]
But it's not just the lack of a hard-copy driver's license that burdens [Respondent] while awaiting a long-delayed hearing. The threat of a suspension of driving privileges is indeed a tremendous burden, threatening a loss of livelihood and all the benefits of a comfortable and prosperous life. It's a terrible emotional burden that hangs over one's head. All this is a burden that no temporary stay of the ultimate harm can possibly alleviate.
The stay provided for in §13558, subdivision (e), can only be reasonably interpreted to be intended to assure some limited relief, in the form of a stay of the actual suspension, in the rare case where a hearing prior to the original effective date is not possible, through no fault of the department. Although this "stay" remedy contemplates continuing jurisdiction, it was never meant for routine use against the driver, but rather as protection for an occasional failure to act in time, and it reinforces the simple concept that the D.M.V. retains jurisdiction till a driver enforces his or her rights.
PRACTICE NOTE: You may wish to skip the following argument when these points and authorities are used in a D.M.V. motion. Hearing officers aren't likely to know of the cases that are discussed. And they're likely to mistakenly rely on these authorities to deny your motion to set aside the suspension.
[D. Seemingly Similar Cases Are Distinguishable]
[Two cases have ruled on issues superficially similar to those discussed here.]
[In Woods v. D.M.V. (1989) 211 CA3d 1263, 259 CR 885, the court looked at issues related to the time limit for holding a hearing on a financial responsibility suspension under §16075. Subdivision (b) of that statute says, "The department shall conduct the hearing upon demand of the driver or owner, within 30 days of such demand". Woods held this time limit directory rather than mandatory. In doing so it stressed that the purpose of suspending licenses for lack of insurance is to encourage drivers to obtain insurance before driving.]
[But Woods is not persuasive in our case. Though promptness of suspension was a goal of the legislation it contemplated, it was not its primary focus. Here, the primary focus of the statutory scheme is the speed of the suspension. That purpose cannot be served if delays are allowed.]
PRACTICE NOTE: Woods also discusses another point of interest - the need to show prejudice from the delay. The licensee's declaration that accompanies this motion must meet that need. It will probably do that if it includes facts like those in the declaration referred to above.
[In Spitze v. Zolin 48 CA4th 1920, 56 CR2d 573, the court held that the Veh. C. §23157(g), 15-day time limit for sending blood and urine test results to the D.M.V. was merely directory. The opinion reasoned that it wouldn't be fair to the D.M.V. to penalize them for an outside laboratory's delay over which they had no control.]
PRACTICE NOTE: You may also wish to skip the following argument, since it introduces the topic of hearing expense when it otherwise might not be mentioned.
[4. Heavy Caseload Doesn't Justify Failure to Comply With Statutory Time Limits.]
[D.M.V. was under an obligatory, non-discretionary duty to conduct the hearing and reach a decision in this matter on or before the effective date of the suspension. It cannot therefore complain of a heavy caseload as a justification for not doing so. It had a statutory obligation otherwise. Furthermore, [f]inancial constraints cannot be deemed an excuse for failing to comply with mandatory duties imposed by law (Robbins v. Superior Court (1985) 38 C3d 199, 217, 211 CR 398; Mooney v. Pickett (1971) 4 C3d 669, 680, 94 CR 279).]
5. Respondent is Entitled to a Set Aside of the Suspension for the Failure to Conduct a Hearing and Render a Decision Prior to the Effective Date of the Suspension.
Subdivisions (d) and (e) of §13558 created an obligatory, non-discretionary duty on the part of the D.M.V. to hold a hearing and reach a decision in this matter on or before [October 10, 1998]. D.M.V. failed to do that.
The language of the statutory scheme and the legislative intent behind it make it clear that this failure is jurisdictional. Though we don't have a statutory penalty saying, "If the deadline isn't met, the suspension must be set aside", we do have the strongest evidence of legislative intent that is possible on the point. In fact, one could not image a stronger case for a mandatory remedy short of statutory language directly saying so.
By failing to meet the statutory deadline for a hearing and decision, D.M.V. now has no jurisdiction to hold such a hearing and the suspension must be set aside.
PRACTICE NOTE: Additional authorities on a jurisdictional remedy for a statutory time limit are:
- Pulcifer v. County of Alameda (1946) 29 C2d 258, 175 P2d 1.
- Steen v. City of Los Angeles (1948) 31 C2d 542, 190 P2d 937.
- Garrison v. Rourke (1948) 32 C2d 430, 196 P2d 884 (overruled on other grounds in Keane v. Smith (1971) 4 C3d 932, 939, 95 CR 197).
- Horner v. Board of Trustees (1964) 61 C2d 79, 37 CR 185.
- Edwards v. Steele (1979) 25 C3d 406, 158 CR 662.
- Outdoor Resorts Palm Springs Owner's Association v. ABC Appeals Board (1990) 224 CA3d 696, 273 CR 748.
- Chrysler Corporation v. New Motor Vehicle Board (1993) 12 CA4th 621, 15 CR2d 771.
- Cox v. California Highway Patrol (1997) 51 CA4th 1580, 60 CR2d 159.
II.
FAILURE TO PROVIDE [RESPONDENT] WITH A TIMELY HEARING VIOLATED
DUE PROCESS BECAUSE [RESPONDENT] LOST SIGNIFICANT RIGHTS
THAT WOULD NOT LIKELY HAVE BEEN LOST HAD A HEARING BEEN PROVIDED
1. [Respondent] has Been Deprived of Significant Rights Without a Hearing, and Without Any Idea When the Ordeal Will be Concluded.
[Respondent's] driving privileges are not suspended at this time. Instead, the driving privilege suspension ordered on [September 10, 1998] has been stayed indefinitely, and even though [Respondent] has been given a date for a hearing on the suspension, [Respondent] has no idea when a decision will be rendered after that hearing. Typically, such decisions are delayed for months6
[Begin Footnote]
__________________________
PRACTICE NOTE: This footnote calls for you to add the documents you have from other D.M.V. Stop 'n Snatch matters showing a pattern of late decisions after hearings.
[6. Attached hereto as Exhibit I is a series of documents,
all admissible as evidence under the authority of the official
duty presumption (Evid. C. §664) and the official records
exception to the hearsay rule (Evid. C. §1280), demonstrating a
pattern of procedure on the part of the D.M.V. whereby decisions
after hearings are routinely delayed for months, in violation of
§13558, and often also in violation of Gov. C. §11517(a)(3)
("The agency shall issue its decision within 100 days of
submission of the case.").]
[End Footnote]
Meanwhile [Respondent] bears the burden of a loss of significant rights. As was pointed out earlier, [the lack of a hard-copy driver's license makes it impossible for Respondent to obtain fruitful employment, rent a car away from home, or cash a check or otherwise identify [himself] [herself] to persons unwilling to accept a California Identity Card. Whenever Respondent is required to show the temporary driver's license, Respondent is viewed with suspicion and distrust, and reviled as a drunk driver, without ever having been convicted of that offense or being administratively adjudicated so.] And Respondent suffers the enduring uncertainty of what the future has in store.
2. Had [Respondent] Been Give the Requested Hearing, It Would Have Likely Resulted in a Set Aside of the Original Suspension Order.
Exhibit J7 shows that in 1995, the last year for which statistics are available, the majority of hearing requests in Stop 'n Snatch cases before the D.M.V. resulted in a set aside of the suspension. This is apparent from a close look at the figures it contains.
[Begin Footnote]
__________________________
7. This document, entitled "Administrative Per Se Process
Measures" purports to be authored by Patrice Rogers of the
D.M.V.'s Research and Development Section. The signature,
purporting to be that of a government employee, is presumed
authentic under Evid. C. §1453. In addition, the document itself
contains facts known uniquely to D.M.V., and it is therefore
self-authenticating under Evid. C. §1421. It's also a party
admission, admissible over a hearsay objection (Evid. C. §1220).
In addition, it is requested that judicial notice be taken
under the authority of Evid. C. §452(c).
[End Footnote]
On its second page, a line near the top says, "Total APS actions taken (including actions later set aside)", and it shows a figure of 193,468 for 1995. Directly below that line is a line which says, "Total APS actions set aside", with a figure of 13,976 for the year 1995. Dividing 13976 by 193468 we see that 7.2% of all APS actions in 1995 were set aside.
But these figure include all APS actions. We're more interested in how many set asides resulted in cases where a hearing was held. Looking at the last section on this page, entitled "APS Hearings", we see a line entitled, "Total .08 and .01 APS hearings scheduled", and shows a figure of 17,610.
Conservatively estimating that every scheduled hearing was also held, and dividing the number of set asides (13,976) by the number of hearings held (17,610) we see that a little over 78% of hearings resulted in a set aside. If not all scheduled hearings were actually held, the percentage of set asides would of course be higher, but perhaps that number would be counter-balanced by additional hearings scheduled in 1994 but not held until 1995. In any event, the figures show that in general, a large number of hearings result in a rescinding of the original order of suspension.
3. U.S. Supreme Court Opinions Support [Respondent's] Claim That the Delay in Granting [Respondent] a Hearing and a Decision Following That Hearing Are a Denial of Due Process Under the Due Process Clause of the United States Constitution.
PRACTICE NOTE: This discussion mentions only U.S. Supreme Court opinions. The California Supreme Court has elaborated on these holdings to some extent. See, California Administrative Hearing Practice, 2d ed. (Berkeley, CA: C.E.B., 1997) §1.61 - Determining When Due Process Satisfied.
In Bell v. Burson (1971) 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, the U.S. Supreme Court looked at the Due Process Clause of the U.S. Fourteenth Amendment as it relates to a state's action suspending a citizen's driving privileges, saying:
"Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment."
The opinion went on to conclude that it matters not whether driving privileges are denominated a "right" or only a "privilege", Due Process applies and the driver is entitled to a hearing on the matter.
Later, in Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, the U.S. Supreme Court set forth three factors to consider in evaluating a Due Process claim as it relates to the deprivation of an important right, saying:
"More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e.g., Goldberg v. Kelly, supra, at 263-271."
Summarizing Matthews, it requires a look at:
(1) The private interest that will be affected by the official action; and,(2) The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and,
(3) The Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
In Dixon v. Love (1977)431 U.S. 105, 97 S. Ct. 1723, 52 L.Ed.2d 172, the U.S. Supreme Court applied this same three-factor test to a state's suspension of a citizen's driving privilege. Dixon was a Federal class action lawsuit for declaratory judgment, injunctive relief and damages. A special three-judge district court was convened to hear the case. Significantly Dixon, the class plaintiff, made no argument that the suspension in his case was not appropriate. Instead, he simply argued that suspending his driving privileges prior to giving him a hearing on the suspension violated his Due Process rights.
The court's analysis of the situation under the Matthews factors focused heavily on the second of them, finding that there was no factual dispute and the most a hearing might do would be to give the licensee a feeling that they received personal attention. In short, Dixon had little chance of winning the hearing and for that reason the court found no harm in instituting the suspension beforehand.
Contrary to the situation in Dixon, the odds favor [Respondent]. Had [Respondent] gotten a timely hearing, the suspension would likely have been set aside.
Mackey v. Montrym (1979) 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321, was similar to Dixon. In Mackey, once again in a Due Process analysis, the U.S. Supreme Court applied the three-factor test from Matthews v. Eldridge, supra, and approved of a post-suspension hearing procedure. And once again, it did so where the dispute was not likely to be won by the driver, who was attempting to undo a clear refusal to submit to chemical testing for alcohol8. Once again, the case before us is significantly distinguishable. [Respondent] would likely have prevailed at a timely hearing.
[Begin Footnote]
__________________________
8. The opinion says, at 443 U.S., page 24:
"Moreover, as this case illustrates, there will rarely be any genuine dispute as to the historical facts providing cause for a suspension. It is significant that Montrym does not dispute that he was arrested, or that probable cause existed for his arrest, or that he initially refused to take the breath-analysis test at the arresting officer's request."[End Footnote]
4. Matthews Three-Factor Analysis Reveals Due Process Violation From Delayed Hearing and Decision.
The first factor to consider under Matthews is the private interest that will be affected by the official action. As was previously mentioned, [Respondent cannot apply for work, cannot rent a car and has difficulty cashing checks. He's viewed with suspicion and distrust, and reviled as a drunk driver, without ever having been convicted of that offense or being administratively adjudicated so.] And Respondent suffers the enduring uncertainty of what the future has in store.
Although [Respondent] is not fully deprived of driving privileges, [Respondent] nevertheless has been subjected to significant detriment without Due Process of law (see, e.g., Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551).
The second factor, the risk of an erroneous deprivation and the value of safeguards is significant in this case, as has been previously pointed out. [Respondent] would likely have prevailed, had a timely hearing been held.
Finally, Matthews requires a look at the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Respondent] does not dispute the statutory scheme which allows an immediate notice of suspension for a drunk driving arrest, without any criminal conviction first. [Respondent] simply demanded no more from the government than a timely hearing in accordance with that statutory scheme. [Respondent] wanted no more than that the State of California follow its own laws granting [Respondent] a hearing before the effective date of the suspension (§13558, subdivisions (e) and (f)). The government has no legitimate interest in depriving its citizens of the benefit of its own laws, especially when those laws appear to be aimed at protecting Due Process rights.
The State of California through its Department of Motor Vehicles has violated [Respondent's] Due Process rights under the U.S. Constitution's Fourteenth Amendment, and the action must be set aside for that reason.
III.
FAILING DISMISSAL, THE [RESPONDENT] IS ENTITLED TO AN
IMMEDIATE HEARING AND DECISION.
Failing the remedy of a set aside of the suspension, [Respondent] demands an immediate hearing in accordance with the D.M.V.'s mandatory obligation to do so. In California Correctional Peace Officers Assn. v. State Personnel Board (1995) 10 C4th 1133, 43 CR2d 693, the court made it abundantly clear that [Respondent], upon demand therefore, is entitled to an immediate hearing and decision where the time limit for that has passed, and a court must order an immediate hearing and decision upon request in a C.C.P. §1085 writ proceeding.
CONCLUSION
[Respondent] is entitled to have the suspension order in this matter set aside as a mandatory, jurisdictional remedy for D.M.V.'s violation of [Respondent's] right to a hearing prior to the effective date of the order.
In addition, [Respondent] is entitled to have the suspension order in this matter set aside because the D.M.V. has violated [Respondent's] Federal Due Process rights by failing to hold a timely hearing in accordance with California law, a hearing which [Respondent] would likely have won.
Finally, failing all that, [Respondent] demands an immediate hearing on the suspension order.
Dated:
Respectfully submitted,
________________________________
[Clarence Darrow, Esq.]
PRACTICE NOTE: Attach a proof of service in accordance with the requirements of Cal. C. of Regs., Title 13, §§ 115.08 (see page 11-65).
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